[Federal Register Volume 77, Number 218 (Friday, November 9, 2012)]
[Rules and Regulations]
[Pages 67303-67305]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2012-27444]
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DEPARTMENT OF COMMERCE
National Oceanic and Atmospheric Administration
50 CFR Part 622
[Docket No. 120417412-2412-01]
RIN 0648-BB90
Fisheries of the Caribbean, Gulf of Mexico, and South Atlantic;
Reef Fish Fishery of the Gulf of Mexico; Gray Triggerfish Management
Measures
AGENCY: National Marine Fisheries Service (NMFS), National Oceanic and
Atmospheric Administration (NOAA), Commerce.
ACTION: Temporary rule; interim measures extended.
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SUMMARY: NMFS issues this temporary rule to extend the expiration date
of interim measures to reduce overfishing of gray triggerfish in the
Gulf of Mexico (Gulf) implemented by a temporary rule published by NMFS
on May 14, 2012. This temporary rule extends the reduced commercial
quota (commercial annual catch target (ACT)), commercial and
recreational annual catch limits (ACLs), and recreational ACT; and the
revised recreational accountability measures (AMs) for gray
triggerfish, as requested by the Gulf of Mexico Fishery Management
Council (Council). The intended effect of this temporary rule is to
reduce overfishing of the gray triggerfish resource in the Gulf while
the Council develops permanent management measures.
DATES: The expiration date for the interim rule published at 77 FR
28308, May 14, 2012, is extended from November 10, 2012, through May
15, 2013, unless NMFS publishes a superseding document in the Federal
Register.
ADDRESSES: Electronic copies of documents supporting this temporary
rule, which include an environmental assessment (EA) and a regulatory
flexibility analysis, may be obtained from the Southeast Regional
Office Web site at http://sero.nmfs.noaa.gov.
[[Page 67304]]
FOR FURTHER INFORMATION CONTACT: Peter Hood, telephone: 727-824-5305 or
email: [email protected].
SUPPLEMENTARY INFORMATION: The reef fish fishery of the Gulf is managed
under the Fishery Management Plan for the Reef Fish Resources of the
Gulf of Mexico (FMP). The FMP was prepared by the Council and is
implemented through regulations at 50 CFR part 622 under the authority
of the Magnuson-Stevens Fishery Conservation and Management Act
(Magnuson-Stevens Act). The Magnuson-Stevens Act provides the legal
authority for the promulgation of interim regulations under section
305(c) (16 U.S.C. 1855(c)).
Section 305(c)(2) of the Magnuson-Stevens Act provides the Council
the authority to request interim measures, if necessary, to reduce
overfishing. On April 19, 2012, the Council requested that NMFS
implement a temporary rule to reduce overfishing of gray triggerfish in
the Gulf while the Council and NMFS develop Amendment 37 to the FMP.
Amendment 37 will contain permanent measures to end overfishing of the
gray triggerfish stock. On May 14, 2012, NMFS published the final
temporary rule (77 FR 28308) to implement measures to reduce
overfishing of gray triggerfish in the Gulf and requested public
comment. The interim measures implemented revised commercial and
recreational ACLs and ACTs and revised the AMs for the recreational
sector. Through the final temporary rule, the commercial sector ACL was
reduced to 64,100 lb (29,075 kg), round weight, and the commercial ACT
(commercial quota) was reduced to 60,900 lb (27,624 kg), round weight.
The recreational sector ACL was reduced to 241,200 lb (109,406 kg),
round weight, and the recreational ACT was reduced to 217,100 (98,475
kg), round weight. Additionally, the temporary rule established an in-
season AM for the gray triggerfish recreational sector that prohibits
the recreational harvest of gray triggerfish (a recreational sector
closure) after the recreational ACT is reached or projected to be
reached.
The Council requested an extension of the interim rule on August
23, 2012, to ensure that management measures remain in effect for gray
triggerfish to reduce overfishing while more permanent measures are
developed through Amendment 37. Section 305(c)(3)(B) of the Magnuson-
Stevens Act allows for interim measures to be extended for one
additional period of 186 days provided that the public has had an
opportunity to comment on the interim measures and the Council is
actively preparing a plan amendment to address the overfishing on a
permanent basis.
Amendment 37 is scheduled to be implemented early in the 2013
fishing year.
Comments and Responses
Section 305(c)(3)(B) of the Magnuson-Stevens Act requires that the
public has an opportunity to comment on interim measures after the
regulation is published and the Council is actively preparing a plan
amendment to address overfishing on a permanent basis. Therefore, NMFS
solicited comments in the May 14, 2012, final temporary rule. NMFS
received comments from a total of 11 entities on the final temporary
rule. The following is a summary of the substantive comments NMFS
received and NMFS' respective responses. Similar comments have been
grouped together.
Comment 1: Personal observations do not support the stock
assessment findings that the stock is overfished and undergoing
overfishing. Therefore, there is no reason for the temporary rule.
Response: Gray triggerfish are known to be highly site specific and
so it is possible that gray triggerfish abundance is greater in some
areas of the Gulf than in others. However, both the 2006 benchmark and
2011 update Southeast Data, Assessment, and Review (SEDAR) assessments
of the gray triggerfish stock used data from a variety of sources
throughout the Gulf. Both of these assessments, which are considered
the best available science, indicate the stock size is too low
(overfished) and that too many fish are being caught and landed
(overfishing). The Magnuson-Stevens Act requires the Council and NMFS
to end overfishing and allow the stock to recover; therefore, the
Council and NMFS are obligated to revise the gray triggerfish
rebuilding plan to achieve these objectives.
Comment 2: Personal observations support that gray triggerfish
abundances are low, but the cause of the reduction in abundance is not
due to overfishing. Reductions in abundance are due to the number of
red snapper feeding on juvenile reef fish, including gray triggerfish.
Response: The 2011 SEDAR update assessment indicated that for 2005-
2009, gray triggerfish recruitment has been less than average. However,
the reason for the reduced recruitment is currently unknown. At this
time, there is no evidence to support that low gray triggerfish
recruitment is a result of red snapper predation.
Comment 3: Rather than closing gray triggerfish recreational
harvest when the ACL is reached, a reduced recreational bag limit
should have been implemented to avoid any closures.
Response: In evaluating long-term measures to reduce the
recreational harvest of gray triggerfish in Amendment 37, the Council
is evaluating reduced recreational bag limits. However, their analyses
indicate that even if the bag limit were reduced to 1-fish per person
per day from the current 20-fish reef fish aggregate bag limit, some
type of seasonal closure is needed to reduce harvest consistent with
reductions needed for the rebuilding plan. The Council is evaluating a
combination of these measures in Amendment 37 to the FMP.
Comment 4: The 2011 SEDAR gray triggerfish update stock assessment
did not account for changes in gray triggerfish fishing as a result of
the increase in the minimum size limit and the requirement to use
circle hooks.
Response: The 2011 SEDAR update assessment did account for the
increase from 12-inches (30.5 cm), total length, to 14-inches (35.6
cm), fork length. This change was noted in the regulatory history
section in the final 2011 SEDAR update assessment report. The effects
of the size limit change were reflected in length data from fishery-
dependent sampling programs after August 4, 2008, when Amendment 30A to
the FMP became effective and these measures were implemented (73 FR
38139, July 3, 2008). Although the effects of circle hooks on gray
triggerfish fishing were not specifically examined in the 2011 update
assessment, the 2011 SEDAR update stock assessment showed declines in
both the commercial and recreational harvest starting in 2005, well
before the circle hook requirement went into effect on June 1, 2008.
Therefore, other factors are responsible for the declining gray
triggerfish stock. In addition, differences between catch-per-unit-
effort estimates between the 2011 SEDAR update assessment and the 2006
SEDAR benchmark assessment did not vary by much, suggesting the change
to circle hooks has had little effect on gray triggerfish fishing.
Comment 5: The gray triggerfish commercial sector should be closed
until the gray triggerfish stock recovers.
Response: The temporary rule reduces overfishing of the gray
triggerfish stock while the Council develops a rebuilding plan in
Amendment 37. In rebuilding overfished stocks, the Magnuson-Stevens Act
requires that regulations shall ``allocate both overfishing
restrictions and recovery benefits fairly and equitably among sectors
of the fishery'' (Magnuson-Stevens Act section 304(e)(4)(B)). The
action proposed in the comment would place all overfishing
[[Page 67305]]
restrictions to the commercial sector, and as the stock recovers,
allocate these benefits to the recreational sector. Thus, this action
would not be fair and equitable and would not conform to the Magnuson-
Stevens Act.
Additionally, the current allocation between the commercial and
recreational sector is 29 percent and 71 percent, respectively. Given
the needed reduction in gray triggerfish harvest from 2011 levels to
2012 levels is approximately 50 percent, closing the commercial sector
would not achieve the needed reduction in harvest that would allow the
stock to recover by 2017, the end year of the 10-year gray triggerfish
rebuilding plan. Therefore, even with an established commercial
closure, recreational measures would still need to be implemented for
the stock to recover within the allotted time of the rebuilding plan.
Classification
The Administrator, Southeast Region, NMFS, (RA) has determined that
the interim measures this temporary rule extends are necessary for the
conservation and management of the Gulf gray triggerfish stock, until
more permanent measures are implemented, and is consistent with the
Magnuson-Stevens Act and other applicable laws. The Council and NMFS
are developing Amendment 37 to the FMP to establish long-term measures
to end the overfishing of Gulf gray triggerfish and rebuild the stock.
Amendment 37 and its associated regulations are still being implemented
and are not expected to become effective until the 2013 fishing year.
This temporary rule has been determined to be not significant for
purposes of E.O. 12866.
This temporary rule is exempt from the procedures of the Regulatory
Flexibility Act because the rule is issued without opportunity for
prior notice and comment.
An EA was prepared for the interim measures contained in the May
14, 2012, final temporary rule (77 FR 28308). The EA analyzed the
impacts of reduced harvest through the 2012 fishing year, which
includes the impacts related to extending the interim rule. Therefore,
the impacts of continuing the interim measures through this extension
have already been considered. Copies of the EA are available from NMFS
(see ADDRESSES).
The Assistant Administrator for Fisheries, NOAA (AA) finds good
cause under 5 U.S.C. 553(b)(B) to waive prior notice and opportunity
for public comment on this temporary rule extension. Providing prior
notice and opportunity for public comment would be contrary to the
public interest. This rule would continue interim measures implemented
by the May 14, 2012, final temporary rule, for not more than an
additional 186 days beyond the current expiration date of November 10,
2012. The conditions prompting the initial temporary rule still remain,
and more permanent measures to be completed through Amendment 37 have
not yet been finalized. Failure to extend these interim measures, while
NMFS finalizes the more permanent measures in Amendment 37, would
result in additional overfishing of the Gulf gray triggerfish stock,
which is contrary to the public interest and in violation of National
Standard 1 of the Magnuson-Stevens Act.
For the aforementioned reasons, the AA also finds good cause under
5 U.S.C. 553(d)(3) to waive the 30-day delay in effectiveness of this
rule.
Authority: 16 U.S.C. 1801 et seq.
Dated: November 6, 2012.
Alan D. Risenhoover,
Director, Office of Sustainable Fisheries, performing the functions and
duties of the Deputy Assistant Administrator for Regulatory Programs,
National Marine Fisheries Service.
[FR Doc. 2012-27444 Filed 11-8-12; 8:45 am]
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